For Woman Scotland intervene in Sandie Peggie tribunal

The Herald Scotland

a day ago

For Women Scotland (FWS), the group responsible the landmark ruling in April, warned the employment tribunal's judgment could be open to "appeal on any point where Dr Upton's sex is relevant".
He made the remarks while overseeing evidence in the tribunal dispute centred around transgender doctor Dr Beth Upton's use of the female changing room at Victoria Hospital in Dundee.
During the tribunal, NHS Fife's lawyer Jane Russell KC repeatedly objected to Dr Upton being referred to as a "man" by Ms Peggie's barrister Naomi Cunningham.
She described the FWS judgment - which ruled that the terms "sex", "man" and "woman" in the 2010 Equality Act referred to biological sex - as an "abstract case" that only related to the representation of public boards in Scotland.
Ms Russell later told the tribunal that "Dr Upton was not a man, she is a transwoman".
Ms Peggie's barrister Ms Cunningham referenced the FWS judgment, stating that "legally speaking, a transwoman is a man".
Judge Kemp then intervened, stating on July 23: "I think that's a contentious matter, what exactly For Women Scotland says and what it means.
"I think it would be appropriate to put this on a hypothesis that you have outlined - on the hypothesis of what you say is correct in law.
"That would be appropriate. But until we have had the opportunity of hearing all the submissions and making our decisions on that, this is a point in dispute."
Following that exchange, FWS asked for permission to intervene in the employment tribunal.
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Clerks from the Dundee Tribunal Hearing Centre wrote to the organisation on Thursday to state neither legal teams objected to the intervention.
The submission from FWS's Trina Budge, Marion Calder and Susan Smith, said Ms Russell KC was "simply not factually correct", adding the organisation was "surprised" there was no correction by the tribunal.
FWS then condemned the comments by the judge, adding: "This should not be a point in dispute by the court, nor regarded as contentious or a hypothesis to be tested."
The organisation said it was "beyond doubt" that the Supreme Court ruled that the term woman was linked to biological sex.
The submission said: "It is simply not a stateable argument for Ms Russell to propose that For Women Scotland does not say that Dr Upton is a man.
"It may well be a matter for the court to decide whether the Supreme Court judgment has any applicability to the case in hand, but it is not open for Ms Russell, or the tribunal, to contest the findings of the apex court.
"We are concerned about two things, firstly that closing submissions may attempt to re-litigate our case and debate the definitions of "sex", "woman", and "man" in the Equality Act, when these are settled matters in law.
"And secondly, that if the tribunal does not make it clear to the parties (and the viewing public) that "what exactly For Women Scotland says" is in fact clear and settled in law and not "contentious", "a hypothesis" or "in dispute" then it may render the judgment open to appeal on any point where Dr Upton's sex is relevant."
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On Thursday, tribunal clerks wrote to FWS, stating: "The tribunal is not in a position to comment on the matters you raise until all submissions have been made by the parties."
The tribunal resumes for oral submissions on September 1 and 2, with both legal teams appearing in person in Dundee.
However, it is unlikely a decision will be made on the day, with the judge expected to take a significant period of time to consider the evidence.
It could be until December before a judgment is declared.
FWS's Supreme Court appealed the Gender Representation on Public Boards (Scotland) Act 2018 which aimed to increase the representation of women on public boards.
The legislation stated a trans woman with a Gender Recognition Certificate should be treated as a woman.
However, the ruling has had significant ramifications on UK-wide policy.
The guidance is currently being considered by governments, while the Equality Human Rights Commission (EHRC) said in May that 'trans woman (biological men) should not be permitted to use the women's facilities and trans men (biological women) should not be permitted to use the men's facilities, as this will mean that they are no longer single-sex facilities'.
Last week, the Museum Galleries Scotland, which supports 455 non-national museums and is Scottish Government-funded, said these proposals could force some museums to close or leave trans people with no facilities.